July 31, 2005

Barman Explains It All

If you're one of the readers who finds De Novo through a search like "what law schools will accept me," I recommend reading Alex Wellen's writings in today's New York Times. The first shreds the US News and World Report rankings; the second tells you where to get more reliable information. (Including stuff I didn't know, like the sudden decline in the number of teaching faculty at my own school from fall to spring. Eep.)

UPDATE: For readers disappointed by dead (or at least severely injured) links, the ones in this post now work even without buying the article.

On a More High Minded Note

[Assume that nothing in this post is work-safe.]

A LiveJournalist with a newly acquired post office box (no link in case she has a technically-public but intended-as-private site) says that she'd like to go into the used-panty business. Her fiance says that this should be fine as long as she notes that these are indeed used -- which presumably is the selling point -- so there is no false advertising. However, one commenter claims that selling worn underwear is illegal. This is true in Tokyo, and in the rest of Japan in the absence of a license, but to my knowledge, not in the United States. After all, the sale of all other used clothing items, including some that certain people consider problematic, is legal, and as of January 2001 underwear could be shipped through the U.S. Postal Service.

The real difficulty, in all likelihood, will be finding an online auction site that permits one to sell unwashed secondhand clothing. Both eBay and Yahoo reportedly do not want unclean underclothes to be retailed on their websites (although it undoubtedly happens; looking for women's intimates on eBay pulls both "used" and "worn" as suggested search terms), so the LJer may have to find websites that specialize in adult items. Due to the nature of their merchandise, these may charge higher fees and otherwise be more difficult to use than the most popular auction sites.

Bad Form

I feel myself to be in questionable taste for even mentioning this, but UT Law professor Brian Leiter's post about people who make their lack of admiration for him clear online has been hard to shake from my mind. All the names named are of people involved in law, and one person is an adjunct professor at Loyola in LA. Leiter particularly attacks Eugene Volokh of UCLA Law for claiming to be civil while having comments sections on his blog in which people often are uncivil. Volokh and his co-bloggers have not deigned to notice this, so again, I feel a little... eh... for doing so.

Despite having been called on in Civil Procedure to explain how I was going to avoid liability for comments made by others on my blogs, I'm not altogether sure what the state of law on this is. Considering that the Conspiracy seems to have a fairly moderated comments section -- Leiter includes a comment in his post that Prof. Kerr (who is indeed a nice guy) had deleted from VC -- my vague recollection implies that they set themselves up for more liability based on the comments they leave standing than would someone who ran a blog with a policy of not deleting comments. The latter is pretty much the policy of De Novo; even when one of our friends is attacked, we respond with more comments rather than censorship. Not because we're more pro-free speech than VC, but because we're more excited about getting any comment that isn't an invitation to enlarge our manhood.

Anyway, Leiter's post put two nagging questions in my mind. First, aside from the legal liability issue, is there moral responsibility for "inviting" people to say things with which one would not dirty oneself? And second, how on earth are professors supposed to maintain the appropriate level of professionalism and collegiality if they are attacking each other online? Pity the poor dean's husband who seats Leiter next to any of his foes.

[Post title courtesy of Jas. Hook. "Bad form," he cried jeeringly, and went content to the crocodile.]

July 29, 2005

Jarndyce and Jarndyce

Earlier this summer, a submission to my journal in the law & lit area gave me reason to look at an old paper I wrote as an undergradute for a Dickens seminar. In it I focused on the interplay between the legal world and romance in some of the novels -- the eye-roll-inducing title was "Courting Dickens" -- and there's much more material out there about Dickens's portrayals of law overall. For the most part, he took an extremely negative view. The case of Jarndyce and Jarndyce depicted in Bleak House destroys everything it touches and finally swallows up the disputed estate through decades of lawyers' fees. As Justice Ginsburg footnoted in Hess v. Port Auth. Trans-Hudson Corp.,

The dissent questions whether the driving concern of the Eleventh Amendment is the protection of state treasuries, emphasizing that the Amendment covers "any suit in law or equity." Post, at 60. The suggestion that suits in equity do not drain money as frightfully* as actions at law, however, is belied by the paradigm case. See Jarndyce and Jarndyce.

In an order for argument in Scales v. U.S., Justice Clark concludes,

The case first came here over three years ago. Certiorari was originally granted on March 26, 1956, 350 U.S. 992. After oral argument, the case was restored to the docket and ordered to be reargued, 353 U.S. 979. Prior to reargument, the Solicitor General filed a memorandum suggesting remand for a new trial under our intervening ruling in Jencks v. United States, 353 U.S. 657. This was done, 355 U.S. 1. After affirmance of a second conviction, we again granted certiorari, 358 U.S. 917, and on April 29, 1959, heard oral argument for the second time.

The Court poses some questions ostensibly for the guidance of counsel at the third argument. None involves the "Jencks question," so there must be no doubt in the Court's mind on that issue. In fact, all of the questions posed have been fairly covered by the two arguments already made by capable counsel. All the reargument does is cause inordinate delay. The case is as ready for disposition now as it will ever be, and we should not adjourn until it is handed down.

Much has been said of late of the law's delay, and criticism has been heaped on the courts for it. This case affords a likely Exhibit A. It looks as if Scales' case, like Jarndyce v. Jarndyce, will go on forever, only for the petitioner to reach his remedy, as did Richard Carstone there, through disposition by the Lord.

Compared to Jarndyce, however, four years doesn't seem terribly long for the disposal of a case. The long-running cases that come to my mind in recent Supreme Court jurisprudence would be the ACLU's challenges to the Communications Decency Act of 1996 (filed after the law's signing and still going as of last year), and Adarand, which commenced sometime in the early '90s and kept coming up until the Court finally stopped granting cert in 2001.

Any other suggestions for the litigation that never ends, it just goes on and on my friends?

* If there were no other reason to love Justice Ginsburg, word choice alone would suffice.

NB don't C "The Law Firm"

Currently on display in the Television Hall of Shame is NBC's latest attempt to score pennies off the success of The Apprentice. The show is called "The Law Firm." In case you're too stupid to figure out, or were one of those people who had to look up "Apprentice" or maybe asked your smart friend to find out what it means, the title effectively sums up the entire premise of the show. It's about a fake law firm with fake people running around and working on fake cases.

The creativity that went into the development of the show rivals the combined talents of Shakespeare, Da Vinci, and my neighbor's dog. I don't know of any quasi-realityTVshow that has a bunch of nitwits competing with each other for the sake of competition with type-cast characters to fit a three-year olds expectations.

July 27, 2005

Someone Else's National Security

I suppose the First Amendment caselaw is pretty well settled on when the media can publish material that the U.S. government claims could be detrimental to national security, though the Fourth Estate's reflexively obedient stance may be wearing off enough by now that some cases will arise in the next couple of years. SCOTUS hasn't had reason to cite the Pentagon Papers case since shortly before 9/11 (Bartnicki v. Vopper; Rehnquist, Scalia and Thomas in dissent).

However, I'm not aware of any cases on what another government can do to prevent the American media from disseminating information. ABC News obtained pictures of unexploded bombs discovered in a car in Luton after the July 7 attack on the London Underground, and showed them last night. British broadcaster Sky News used ABC's images contrary to the police's wishes.

In a note to newsdesks today, the Metropolitan police said it was "aware that ABC News has obtained a number of unauthorised images relating to the investigation into, and the crime scenes from, the London bombings of July 7 from a third party.

"We are requesting in the strongest possible terms that media organisations DO NOT publish these images or any similarly unauthorised images because they may prejudice both the ongoing investigation and any future prosecutions."

The Times of London ran a picture from and a transcript of the ABC News program, so apparently this is not a request that anyone is taking terribly seriously. Still, I wonder how a suit by the British government or some subentity thereof, such as the City of London, against an American news organization to prevent publication would play out. Would the U.S. courts be obliged to assign the same level of importance to non-Americans' security? would an action brought in a British court have to be sustained by the American government? (I don't know what the relevant international law and treaties on this would be.)

Procrastinated Geekery

This is old hat for people who had summer journal work that involved more than reading expedites, but I didn't have to open the package that held my brand spankin' new, 18th Edition Bluebook until today. In the course of reading a friend's Note, I thought I'd better check the citation of blog posts, which the 18th specifically addresses.

Posting to blogs take one of two formats. If there is only one poster to the blog, cite as a Web page, but include the date and time-stamp to indicate the specific posting cited. If there are multiple posters on the blog, cite as a posting to a discussion forum. In both cases, indicate the title of the blog before the URL:

This seems less than ideal to me, considering that someone checking the citation would have to go to the archives of the blog in order to find the specific post. For a site like Bashman's, with thousands posts organized by month, that could take a fair amount of time.* I agree that the date and time should be given in case the specific link isn't working -- a frequent issue with Blogger -- but the URL should be for the post so a person looking for the source could type that and get to it as quickly as possible. And giving a way to cite the post's title, if it has one, also would have been nice. The style used in the Note, post title comma date comma at specificURL, is more helpful than the "correct" one.

* And to get really ridiculously nitpicky -- because when we're talking Bluebook, why not? -- there isn't actually a How Appealing post for Sept. 1, 2004, 21:20 EST. The closest one came four minutes later. Also, SCOTUSblog moved to its own domain in February, but didn't move the archives. The cited post does exist, but is dated in non-military time, i.e. as 1:26 PM. So is the Bluebook mandating military time-stamps regardless of the actual style used by the blog? (By the way, the old SCOTUSblog's "link to this post" is worse than useless; it pops up this URL, which put into a browser of course leads to an error page.)

Prepare Your Excuses

In a comment to a post from De Novo's law review symposium, Austen asks, "For those of you who didn't do a journal, how did you answer the employer question 'why didn't you do a journal?'"

Having joined another specialty journal in addition to the Journal of Gender & Law, the only question of that sort that I'll have to answer is "why didn't you do well enough to be invited to Law Review?" However, I imagine that the best answer would be one about how much time you were putting into other activities, such as studying, participating in moot court, working in a clinic, volunteering, working a job that would help pay your tuition, taking care of family members, etc. In other words, highly worthwhile pursuits that would justify not spending hours every week reading submissions and checking citations.

"I hate scrutinizing other people's writing for dinky details" probably will not be a good answer, because from what I can tell, working as a lawyer requires a good deal of doing just that. As more than one symposium contributor pointed out, law review membership is an excellent indicator of someone who will put in a great deal of effort for a long term reward. So any response to the "Why no journal?" question that would make you sound like a person who won't be eager to do the tasks that the employer would be hiring you to do is a bad one.

Saying that you're not interested in contemporary legal scholarship might not be as damaging in a firm environment as it would be for an academic, government or nonprofit job, however, because the associates whom I've met frankly didn't seem to be keeping up with said scholarship. If you've been putting your nose to the grindstone in getting practical experience instead, particularly through internships that involved the same work you'd be doing for the employer, that strikes me as a good reason not to have joined a journal.

Today / 07.26.05

July 25, 2005

Forgetting What's Important

While everyone is discussing whether or not John G. Roberts is a good nominee, whether he's too far/not far enough to the Right, and whether President Bush should have appointed a female, they are losing sight of what's really important.

And that is that John G. Roberts would be the best looking Supreme Court Justice in quite some time. Right now all we have is Justice Breyer, and while the baldness is handsome in its own way, he simply doesn't compare to Roberts. Not that Roberts compares to, say, Brad Pitt. I'm not even saying that Roberts is objectively great looking. But he'll still be more fun to look at than Justice Stevens.

In HBO We Anti-Trust

The formerly Christian cable company Adelphia is about to be gobbled up by Time-Warner and Comcast. (I say formerly because the Rigas family, which removed Playboy and Spice on account of its religious beliefs now sits in prison for robbing millions of people). There are some who object to the deal. The basis for their objections is that Time-Warner (co-parent company of Earth, along with Microsoft) and Comcast would have monopolistic powers and harm consumer choice...blah blah blah.

My question is, how the hell can a cable company have monopolistic powers when the entire industry operates AS A MONOPOLY. There may be some ardent libertarians who can find choice of cable company providers in where someone chooses to live, but I really don't think anyone seriously considers moving out in order to save $3 on their cable bill. More specifically, neighborhoods are carved up and served to the Big Three Two with one cable company devouring each region, thereby depriving everyone in that region of choice (of which predator to succomb to). The only meaningful choice comes from satellite providers, but that tells me nothing about monopoly among cable carriers...or how the creation of one on the macro level will be any different or change anything in an enviornment that's built on a monopoly at the micro level.

July 20, 2005

It Would Have Been More Fun with Clement

I really wish the President nominated Judge Clement. With the way the seating chart works at One First Street, she would have ended up sitting next to RBG to the left of the Chief, creating for the first time an all-girl section. But it isn't to be. My initial reaction to Roberts is that this is definitely not the time to pick a fight. Putting abortion aside, Roberts is about the type of nominee you'd expect from the Pres...in other words, at least he's not Luttig. The only way to oppose the nomination would based on personal ideology, and that would backfire in a second against the Dems. It's not like at least we have the House or anything. Let Roberts on, worry about defeating Santorum and others in the Senate in a year, concentrate on a foreign/military expeditionary policy that ACTUALLY considers national security, have a domestic agenda that is more than maintaining the status quo, and perhaps turn attention back to Karl Rove. But the broo ha ha over Roberts is just that.

And if the SCOTUS doesn't ignore abortion, it'll either solidify Roe or light a fire under the left and moderates the likes of which have not been seen since circa 1929.

July 17, 2005

I Am Not A Lawyer

The end of my first year has brought about the phenomenon of which we were warned at orientation: people treat me like a lawyer. Friends, relatives and acquaintances expect me to know, understand and be able to explain The Law. As long as they ask purely out of curiosity, like a cousin's queries about the Michael Jackson case (since I did my best to avoid knowing anything about the trial, I only could explain aspects like the difference between a question of fact and a question of law), or my current tour leader's wish to know whom I thought would get O'Connor's seat and the Chief Justiceship (my dark horse is Professor BeVier at UVA Law, and between Scalia and Thomas I'd pick the latter not only for the First African American Chief Justice thing but also because he appears to be a much less abrasive personality than Scalia), I'm fine.

However, the requests for real legal help also have come in a couple of times, and I have to fight my own desire to pontificate and opine in order to give the approved answer, 'You should ask a real lawyer and not a law student.' I also have a healthy fear of giving someone bad advice, which is part of why my volunteering last year was in the form of academic tutoring rather than assisting immigrants or domestic violence survivors; I doubted whether a day of training would make me feel competent to do such work.

That said, I'm looking forward to doing Real Legal Work next summer, and if anyone has advice to pass along about places they'd recommend for doing it -- firms, government offices, nonprofits -- please do. I'm filling out the bidding form for the Early Interview Program sponsored by Career Services, and the collective wisdom of De Novo readers regarding what might be a good fit would be much appreciated. I'm fairly open minded about the kind of work I'll do; would prefer New York, D.C. and Austin; and have been financially fortunate enough that the paycheck is not the most important factor.

An amicus brief is being prepared to be filed in the Supreme Court on behalf of law students and law professors urging the reversal of the Third Circuit's opinion in FAIR v. Rumsfeld. The brief will be filed in support of the constitutionality of the Solomon Amendment. The brief is authored by Nelson Lund, Dan Polsby, and Joseph Zengerle of George Mason Law School and several lawyers from the law firm of from Wiley, Rein and Fielding.

If you are law professor and you think you may be interested in signing onto the brief, you can download a copy of the brief here. Instructions for how to go about affixing your name to the brief are provided there as well as well as who to contact for further info.

Amazing! Does anyone doubt that amicus briefs will become a more powerful influence on the courts when we have profs like Zywicki passing it around for hordes of law professors to sign? Like I said, I don't agree with his position, but damn if that wasn't one of the smartest things I've ever seen.

Law students from these schools are represented in this brief:

Capital University Law School, Case Western Reserve University School of Law,
Catholic University School of Law, DePaul University Law School, Georgetown
University Law School, George Washington University Law School, Harvard
Law School, Hofstra University School of Law, New York Law School,
Northwestern University School of Law, Roger Williams School of Law,
University of Florida School of Law, University of Pittsburgh School of Law,
University of South Carolina School of Law, University of Texas School of Law,
University of Washington School of Law, Wake Forest University School of
Law.

So if you're a law student that disagrees with this brief you better find another amicus brief to sign!

I'll briefly mention some of the reasons I disagree with this brief. Here are the main reasons these amici are for the Solomon amendment (italics from the brief):

1. If the Third Circuit’s judgment is affirmed, amici law students will be deprived of opportunities to acquire information from military recruiters about potential careers in the armed forces.

I can't really see how law students will be deprived because the military recruiters can't come on campus. That just seems silly. I plan on talking to the military recruiters, and I can find their office just fine.

2. Moreover, amici law professors will be undermined in providing professional guidance to students interested in careers in public service.

Professors may still provide guidance to their student, in fact; maybe they could inform the students where they can meet with recruiters.

3. The Third Circuit’s judgment will also frustrate the core mission of academic institutions – promoting the free and open exchange of ideas.

Hmm, I don't believe that any professors would be willing to argue that the KKK should be allowed to recruit on campus. So, this statement seems overly broad.

4. And, it will deprive the nation’s armed forces of a diverse pool of candidates for legal careers.

I don't think so. In fact, this case has sparked more of an interest in the JAGs for me. Those of us that are interested will still have the opportunity to join; we just don't get to do it on campus.

I agree that the conditions are easily understood, but what I believe this brief fails to account for is whether there is ever a condition for receiving federal money that is unconstitutional. Obviously there are, but this brief attempts to show that the Solomon Amendment must be followed just as "Title VI of the Civil Rights Act of 1964 as amended and Title IX of the Education Amendments of 1972." Why? What makes this the same? It seems inherently backwards to equate a ruling from the Supreme Court [Grove City College v. Bell, 465 U.S. 555 (1984)] establishing that schools may not discriminate with a suggestion that because schools could not discriminate in that case they have to allow organizations that discriminate in this one.

No one understands job fairs and interview weeks as forums of expression for the law schools. Rather, they are simply an opportunity for the students to receive and evaluate first-hand information about various careers. The right of access is for a short time and demands little space. The Third Circuit’s farfetched conclusion that this amounts to a “forced” endorsement of military employment displays a singular lack of understanding of the forum involved and the scope of the Solomon Amendment itself.

I understand the argument, and it is very persuasive, but to refuse to acknowledge that allowing recruiters on your campus is an endorsement of said recruiters makes it less valuable. Like I said earlier, who would want the KKK to recruit on their campus? They wouldn't because it would be an endorsement of something most of us hate.

I can go on and on, but I feel that this is probably a sufficient beginning to some debate over this topic. I welcome any comments or posts on this subject, and would love to get more in depth if there is an interest.

July 14, 2005

Tax Court Secrecy Over

I read an interesting article in the NY Times which I thought I'd pass along to all you tax minded legal types.

It is one of the most interesting stories that I have read about tax law recently and it reminds me in some ways of the story of how Al Capone was finally brought to justice. In this story however, the main character pushed at the limits of the tax laws and eventually changed the tax courts for posterity. Who is the main character in this drama?

Burton W. Kanter, one of the nation's most prominent tax lawyers, spent a career pushing the limits of the tax laws. He used creative tax planning to finance such movies as "One Flew Over the Cuckoo's Nest" and "The Rocky Horror Picture Show." He pioneered the use of foreign trusts to reduce taxes. He lectured for decades on his creative tax structures at the University of Chicago Law School and wrote a regular column in The Journal of Taxation.

This may seem boring to some of you, but eventually Mr. Kanter was charged with tax fraud, and that is where it begins to get interesting. Mr. Kanter is now dead, but the case lives on -- and man what a case. In fact, you might say that this is one of the most important cases in tax history. It didn't change the rules for the tax courts, but it sure did emphasize why they needed to be changed.

Last week, the tax court announced that it would end a 20-year-old practice of keeping secret reports prepared by its hearing judges, known as special trial judges. The court said it was making the change because of a Supreme Court ruling in March that criticized the tax court's secrecy and ordered the release of the report in Mr. Kanter's case.

"This is going to fundamentally change how these cases are heard by special trial judges," said Norman R. Williams, an assistant professor of administrative law at the Willamette University College of Law. "The Kanter case was obviously the precipitating and, I think, exclusive factor that generated this rule change."

What is so important about this rule change? Well, I think it comes down to the fact that the tax courts can no longer hide the opinions of the special trial judges' reports. (Special trial judges cannot make decisions in cases involving more than $50,000, so they give a recommendation to the senior judge.) Up to this point there was no way to determine what the findings were of the lower trial judge. Most interestingly, it seems that every opinion issued by the senior judge purported to agree with the trial judge's opinion. Even in Mr Kanter's case this was true. It only becomes interesting because:

The Kanter report was released at the end of May, and it caused a stir among tax lawyers. It was strikingly different from the final opinion in the Kanter case, even though the front page of the opinion stated that the court "agrees with and adopts the opinion of the special trial judge." In fact, the special trial judge's report found that there was not enough evidence that the three men had committed tax fraud; the final court opinion said they had.

Oops, maybe the senior judge meant disagree! Well, not really, in fact the tax courts claimed that Judge Dawson had "adopted" the opinion of the special trial judge and refused to release the opinion of the special trial judge.

For those of you who are thinking, "oh well, sometimes things go wrong", I want to make sure you understand this wasn't just a one-time problem:

An appeals court judge, writing in 2003 in the Kanter case, said he had reviewed "880-plus tax court decisions since 1983" involving special trial judge reports and in every one, he said, "the tax court judge purported to agree with and adopt the opinion of the S.T.J."

I think I'll have to quote from Judge Richard D. Cudahy of the Court of Appeals for the Seventh Circuit on this point:

"It is difficult to believe that over the course of 19 years," he wrote, "not a single tax court judge (and there are 19 of them) has ever disagreed with a single original finding" of any special trial judge.

Oops, not one disagreement, is anyone willing to buy that? In fact, we now have proof of at least one disagreement that the court tried to hide, right?

Anyhow, that is hopefully in the past, and any of you who are getting into this field may now have some protection from this abuse of discretion:

The proposed new rules say the special trial judge reports will be released for comment by the taxpayers and the I.R.S. before a final opinion is issued. The new rules, which are to take effect later this year, will apply to future cases, but not past closed cases. Many reports by the special trial judges may not exist anymore.

Hopefully these new rules will pass. If not, the tax courts can continue to use their discretion in a way that is harmful to justice.

July 13, 2005

Lock Up The Dark Skinned

First, before I say anything else, I'd like to give a big shout-out to Chris Geidner. He is a continuing part of this forum and a big law geek like myself at the aptly named Law Dork. Chris has given me the awesome opportunity to become a permanent member of this forum, and for that, he will always be here. I hope to channel Chris like Luke Skywalker channeled Obi Wan in cases of dire need. Maybe some of the lessons that Chris learned from law school can be passed on to the next wave. If not, maybe I'll get a chance to buy him a beer someday.

Anyway, let us return to the morbidly arousing spectacle of law in this country.

Today I'd like to discuss an issue that I believe should have all of us up in arms. Talk Left is reporting that:

Jorge Mora Ramirez was making a cell phone call from his car, which he’d stopped on the side of a road. That lawful activity shouldn’t have subjected Ramirez to a police encounter, but a local cop interrogated Ramirez and got him to admit that he didn’t enter the country through proper channels. The cop tried to get INS to take Ramirez into custody, but INS doesn’t have the resources to waste on undocumented immigrants who pose no threat to public safety. The clever cop then decided that Ramirez was trespassing, simply by entering the cop’s town.

Why is this important? Maybe this phrase will spark something in your memory:

"Ihren papieren, bitte."

In case you weren't familiar, that is a nice German saying that the Nazis had for "give me your papers please".

I know what you are thinking, "another Nazi post that has no relation to the Nazis". Well, I beg to differ, what is stopping these police from demanding documentation from anyone at anytime? If you can be "trespassing" for being in a town, then any American can be forced to provide their papers. The real question is whether those forced to show their papers will ever be white.

Here's some more from Talk Left:

Noting that if found guilty, Ramirez would receive no jail time and only a $1,000 fine, the judge asked the prosecutor, "How is national security or even local security enhanced by giving someone a citation?"

In his questions to the prosecutor about how such applications of the law would work, Runyon asked if foreign visitors could be detained if they left their passport at their hotel. Morse said foreigners would be expected to have the documents.

Aha! Here it is, in black and white. "Foreigners" will be expected to have their papers, whew, I guess us Americans have nothing to worry about.

Wait, what if the guy looks foreign, but claims to be an American. Lock him up, he should have had his papers! He should know better than to travel around this country without proper documentation!

Maybe Chief W. Garrett Chamberlain figures he can make the state free of any dark-skinned people. What a sick joke from a state with the slogan "Live Free or Die".

Then There's the Self-Deprecating Type

As Jason quoted, Robert Bork judged the justices of the Supreme Court to be "lack[ing] any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills." Bork's own moral preferences seem rather clear, including his bias against "normaliz[ing] homosexuality." In light of this latest instance of someone who ought to know better pretending that Lawrence applied only to same-sex sodomy, consider me to be a homosexual.

I'm more inclined to be amused by the kind of humor displayed by a New Hampshire judge dealing with local law enforcement's using criminal trespass charges to deal with illegal immigrants:

"Am I going to determine whether someone is here legally or not?" [Judge L. Phillips Runyon III] asked the prosecutor. "Isn't that what the federal immigration system is for? Is it for part-time district court judges like me who know nothing about immigration and arguably nothing much about anything else either?"

(It's pretty old news; the undocumented worker in question pleaded guilty to two charges and agreed to report to immigration authorities.)

Better Brown Book

Via 3YoH, I see that Prof. Smith of the Conglomerate is recommending that students entering law school this fall read Simple Justice. I read it for an undergrad class on Race & Constitution and liked it very much, but perhaps one's opinion of Brown v. Board plays a role here.

In fact, I'd recommend another book from that course, What Brown Should Have Said, over Simple Justice for the geekier 0L audience. While it lacks SJ's layman virtues, it's a pretty all-star exposure to constitutional law argument: Balkin, MacKinnon, McConnell, Michelman, Sunstein, Ely, Ackerman and Drew Days concurring in the basic holding, and African American NYU professor Derrick Bell in dissent.

Almost everyone is familiar with the basic facts of Brown, and though the background story of how the NAACP LDF brought the case and Warren cobbled together a unanimous Court is interesting, it's also in starring-Sidney-Poitier form. Shockingly, the Balkin collection -- much shorter than Simple Justice -- is not. But it has a website! and a table of contents that makes a great autograph collector if you skip class a lot and go to visitors' lectures instead.

Not that I would know anything about that. Go to class, rising 1Ls, and abstain from computer usage while there.

A Slight Distinction, Take Two

Will Baude's response to criticism of his post on the House's reversing D.C.'s gun ban makes me think that either my critique was poorly written or the arguments made in it were too negligible to address. If it was the former, hopefully I am being more clear in this one, although I hope that none of the negative implications of the style I'm using will attach to the content. In its nastier form, close parsing of another person's argument is called "fisking," but such attacks are made with blatant lack of respect, which certainly is not the case here.

For the most part, the criticisms seem to be that because D.C. residents do not vote for members of Congress, Congress should be extra-obliged to goven as if they did.

Congress is acting as an unelected governing body with respect to its powers in the District. It can pass laws that apply only to D.C. and to none of the places that actually put Congresspeople in office. The kind of people who sloganeer, "Taxation without Representation" make the comparison to the colonial situation because there is a parallel. That the English Parliament had been elected by people residing in England did not make it a body with any democratic connection to Americans.

Relatedly, the argument goes, Congressional legislation that superintends state prerogatives is not that worrisome because the states had a hand in making it. (Leaving aside, of course, the fact that in this post-17th-Amendment world, Senators frequently have interests, platforms, and programs that differ, for better or worse, from those of the state government.)

It is not the states that have had a hand in making Congressional legislation, but rather the people of the states, and the distinction between the two is one the Constitution recognizes in the Ninth and Tenth Amendments, among others. The state governments might have opposed the Gun Free School Zones Act because the "injection of federal officials into local problems causes friction and diminishes political accountability of state and local governments" (Lopez), but this is an interest of the state government that not only may be unshared by the state's senators, but also by the state's people. Congress, especially in this post-17th Amendment world, legislates on behalf of the voters, not on behalf of the state governments.

First off, note that this D.C.-deserves-extra-care argument probably should not be universalized. There are of course billions of people in the world who also do not elect members of the United States Congress (nor even the president). Obviously, their lives and rights should not be ignored by the United States, but I take it that few people, even globalists like myself, think that "political fairness" mandates letting the desires of foreign non-citizens veto the desires of voting Americans.

If those billions of people were having their own elected officials' decisions overriden by the U.S. Congress, I think political fairness might well require letting them have a vote in congressional elections. One of the common complaints made against bodies such as the World Trade Organization and the European Parliament is that their rules often run counter to what the people who must live under them would prefer. But at least all EU citizens get to vote for the members of their Parliament, and the WTO's undemocratic autocracy is enforced upon all; Americans don't get to vote for the person who will declare a certain subsidy illegal in Panama, and vice versa.

And of course residents of D.C. (unlike foreign non-citizens) elect a president who has veto power over and various other administrative weapons against Congress.

Again, the public choice problem of a regulation that applies only to one small group of people arises here. The half million residents of Washington D.C. have three electoral votes, which are unlikely to make or break a candidate in most elections. Therefore, there is a strong political incentive to ignore their preferences when such are opposed to lobbying groups. Signing off on ending D.C.'s gun ban won't force a change on the residents of 50 states, but it will win the approval of gun advocates in those states; D.C. thus becomes a sacrificial lamb.

They also (unlike foreign non-citizens) have the plenary right to leave the district and set up shop across the border in Maryland or Virginia and begin voting for Congress. This is not to say that D.C. is a foreign country, just that it is far from clear that the mere fact that those who choose to live in a federal enclave rather than a state can't elect congress members from that state is a violation of "political fairness".

And the colonists could have just moved back to England if they were so darn set on being represented in Parliament.

That is a cheap retort, but I suspect that some Washingtonians' belief that they are in a pre-Revolutionary War situation would make it a popular one. Certain capacities perhaps should not depend on one's geographic location. For example, African Americans -- the majority racial group in D.C., by the way -- could have left the states that prevented them from exercising their franchise. However, that one should be able to vote without barriers put up due to one's race seems to have struck the country as whole as a sufficiently important right that we ended up with the Voting Rights Act of 1965 instead of a complete exodus of voting-minded African Americans from the South.

There are valid reasons to think that some local matters should be left local, even when Congress has the ultimate authority and responsibility to mind the shop. But given how attenuated the structural safeguards of federalism in this country actually are, the argument for Congressional-Supremacy-Everywhere-But-The-Federal-Enclave will be quite intriguing, and there's no evidence that the NYT intends to make it.

As I said before, the NYT is making a political argument rather than a constitutional one (as is their wont, I believe), and I would bet that their protests against the House would be far quieter, or at least have to take a different tack, if the House were legislating for the entire country. But it's not. This is a point that cannot be ignored when discussing Congressional action with regard to D.C. versus Congressional action for the United States as a whole. Moreover, with specific reference to Lopez, even the states themselves were arguing against the federal legislation primarily on constitutional grounds, not pro-guns-in-schools policy ones; as Kennedy's concurrence notes, "Indeed, over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds."

[For what it is worth, I favor a degree of decentralization in both states and federal enclaves, but here, given the presumptive unconstitutionality of the D.C. gun restrictions, I am inclined to give Congress extra leeway to enforce its Constitutional oath.]

Surely if the D.C. gun restrictions are "presumptive[ly] unconstitutional," their unconstitutionality ought to be corrected by the part of government, either local or federal, that generally decides whether something violates the Constitution, i.e. the judiciary. Congress did not appear to feel a need to set New York straight on the impermissibility of banning wine shipping from out-of-state suppliers by passing contrary legislation, but instead left the smackdown to the courts.

The courts don't seem to have a definite opinion that the D.C. gun restrictions are unconstitutional. The ban has been upheld at the district level in Parker v. District of Columbia, under the 1939 U.S. v. Miller precedent of the SecondAmendment's being about "the preservation or efficiency of a well regulated militia." Appeal is pending. While I understand the argument that each branch of government should act to enforce the Constitution -- that it does not belong to the judiciary alone -- to say that something is "presumptively unconstitutional" in the absence of a judicial finding demands more than the barefaced statement.

Incidentally, I find Robert A. Levy of the Cato Institute agreeing with me on this point that the courts should decide before Congress gets involved. It's separation of powers, not politics (he and I are still divided on the question of whether the gun ban could be desirable) that makes strange bedfellows.

July 12, 2005

Jason Samuel: Bork Borks

In a recent OpinionJournal piece, Judge Robert Bork attempts to connect the nomination of a replacement for Sandra Day O'Connor, constitutional law, and moral chaos. Though I've read similar accounts arguing that we have a degraded judiciary, or more specifically, a judiciary unaware of its purpose, Judge Bork singles the (in)famous "at the heart of liberty" passage of Justice Kennedy as a defining moment in the Court's substituting moral philosophizing for textual analysis--but this isn't to say that Judge Bork advocates the textualism of Justices Scalia or Thomas. In any event, those who've followed the ongoing debate over originalism should read this piece. It's replete with phrasing unique to Bork's dry, but cutting wit:

Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills.

While I expect some of our readers to disagree with Judge Bork's politics (if he has even espoused any, properly understood), his point is simple: in abandoning the Constitution's deliberate wording, we abandon the rule of law. All that is left is the moral philosophizing of the Court. One needn't accept his brand of Constitutional interpretation to accept (or deny) this point.

When Congress passes legislation applicable to the 50 states, the members are acting on behalf of the people who have elected them, who are the same people for whom the law will be enforced. When Congress makes rules for the District of Columbia, no DC voter has put a Congressman into office; their only input is through a non-voting delegate. Therefore there is a degree of democratic accountability in something like the GFSZ Act that is absent from the DC gun ban repeal. Had the GFSZ been opposed strongly by the majority of people who would have to live under it, it would not have passed (nor would the Lopez-bypassing Act of 1996). The gun ban repeal may be opposed by the majority of Washingtonians, but the House needn't give a damn.

The Constitution gives Congress the power "to exercise exclusive legislation in all cases whatsoever" over the District, but the Times was not making a Constitutional argument. It was making an argument about political fairness, and for a city to be governed by a body in which it has no power whatsoever does seem rather unfair, and also likely to be abused. Lobbyists for an industry that may be contrary to the interests of the people will have more sway than the people themselves. In light of DC's problems, this reminds me of when some libertarians went to Harlem to pass out toy guns before New York City banned their sale, an incident immortalized by the Daily Show in "Guns for Tots."

July 11, 2005

J: Bar Exam

Sorry for the long absence - after my 1,000 mile cross country drive, it's taken a bit of steam out of my blogging. But I'm settled in now someplace much warmer, which isn't necessarily the best thing for the summer months.

With that disclaimer out of the way, time to talk about the Bar Exam.

My personal stance is that the bar exam should not exist, much as no entrance exam is required for shoe repairmen, restaurant owners, or traveling salesmen. However, some have argued that a better approach might be to re-tailor the bar exam. Benjamin Barton, for instance, has argued in a couple of articles that admission to the bar should consist of basic procedural certification. (33 Ariz. St. L.J. 429 and 37 Ga. L. Rev. 1167). Indeed, he argues that the entire law school system (including the requirements of 3 years of undergraduate education) should be replaced by a short (6 weeks?) course on familiarizing students with the basic pleading and filing requirements of the court.

Why? Well, the answer is that the only real legitimate argument for any licensing of professionals lies with public cost. By tailoring legal training in this manner, Barton argues that the burden on the courts can be lessened, as delays associated with improper filings are avoided.

It's a neat point, but it might be without proper evidence. The legal field was largely deregulated into the 19th century, and surely there hasn't been a substantial increase in the amount of court rules. While the federal rules associated with evidence and civil procedure now exist, many of these rules were merely codifications of existing common law. Where they differed - it's just an alternative outcome, not another layer of complexity. It's no harder to learn a hearsay exception in a particular case than to learn the absence of that hearsay exception.

Professor Ribsten (of Ideoblog) has argued that the regulation of lawyers can be seen as a property right (in the same vein as IP) that gives lawyers an incentive to develop the law (69 Mo. L. Rev. 299). This might be true, but it's especially troublesome. Why would a society entrust some small group of professionals with the governing of citizens simply because they have the gusto to take the LSAT? It's likely often the case that the incentives of lawyers in developing the law wander significantly from those of the general voting public. Lawyers might draft law especially likely to attract clients, something citizens might not want. If one industry found itself often entangled in personal-injury suits, it might persuade lawyers representing the industry to develop law favorable to Big Corp. On the other side, lawyers might draft laws hurtful to business as well. It's probably not fair to say that these interests will always cancel out either (and if they do, what's the point?). For instance, plaintiffs lawyers' interests are largely dominated by large payouts. The considerations of a company looking for a location to set up shop, however, are likely more complex, and involve potential personnel, the convenience of clients, state taxes, and real estate.

I don't give any of the aforementioned articles enough justice in this small space here, so read up if you find any of this interesting. My vote, however, remains with the elimination of the bar exam (and mandatory law school, for that matter).

That said, I'll be happy to take my inflated paycheck when offered to me.

Seven Weeks Is Short for Detention

The aspiring American filmmaker whose detention in Iraq was noted in this post has been released. Most of his possessions -- U.S. passport, camera, laptop computer, Pepperdine University ring, clothes -- were lost or destroyed, but at least he has the film that he came to Iraq to shoot.

Don't Rushdie to Judgment

Though I hesitate to second-guess Salman Rushdie's description of Indian law for Muslims (he being both India- and Muslim-born, and I neither), I do think that his Times op-ed leaves out some relevant historical political context as well as a federalism-esque rationale. He begins the piece by talking about two Pakistani gang-rape cases that have become famous, then says,

Now comes even worse news. Whatever Pakistan can do, India, it seems, can trump. The so-called Imrana case, in which a Muslim woman from a village in northern India says she was raped by her father-in-law, has brought forth a ruling from the powerful Islamist seminary Darul-Uloom ordering her to leave her husband because as a result of the rape she has become "haram" (unclean) for him. [...]
Why does a mere seminary have the power to issue such judgments? The answer lies in the strange anomaly that is the Muslim personal law system - a parallel legal system for Indian Muslims, which leaves women like Imrana at the mercy of the mullahs. Such is the historical confusion on this vexed subject that anyone who suggests that a democratic country should have a single, unified legal system is accused of being anti-Muslim and in favor of the hardline Hindu nationalists.

Probably because of space constraints, Rushdie fails to mention the history underlying this peculiar dual system, which dates back to 1937 and British colonial rule. Aware of the fate that a minority group that once had dominated the majority often suffers, the Muslim League boycotted the Hindu-led independence movement and called for a separate homeland. Majority acquiescence to the separate law is likely to be founded in a desire to prevent any more sectarian conflict than India already suffers.

When India was divided into Hindu and Muslim portions at its independence, the resulting chaos of forced migration -- fifteen million people's trying to move into the correct nation -- resulted in ethnic cleansing, riots and rapes. Hundreds of thousands of people died, including women who boarded cross-border trains; their relatives would go to meet them, only to find their severed breasts and dismembered bodies inside the cars. The violence continued almost undiminished with the three India-Pakistan wars, and the second half of Rushdie's own Midnight's Children recounts some of the worst horrors of the period, although I would consider the most emotionally wrenching part of the book to be that which deals with the Emergency called by Indira Gandhi. She later was killed by her own Sikh bodyguards, who sought to avenge the destruction of their faith's Golden Temple by government troops who were flushing out rebels hiding in the shrine. Several thousand Sikhs were killed in the attacks that followed.

By that standard, even the 1992 Bombay and 2002 Gujarat riots, each of which killed almost a thousand people -- mostly Muslims -- are blips on the tragedy radar. Bombay was touched off when Muslims there heard that the Babri Masjid mosque had been demolished by Hindus, who believe that it was built on the birthplace of the god Ram. Ten years later, a train full of Hindus who were going to Ayodhya to build a temple on that site was torched; Muslims were believed to be responsible, and their homes and businesses were destroyed. In both incidents, the ability of Hindu mobs to pinpoint where Muslims lived and worked indicates involvement by government officials.

Everyone knows about the ongoing tension between Pakistan and India and fighting in Kashmir, and I won't get into the separatist movements by Sikhs, Christians and Communists (just so the theists aren't having all the fun). Indian law has a hellishly difficult time dealing with the competing demands of various groups. Several states prohibited "forced conversions" due to hysteria that Christian missionaries were somehow tricking or bribing people into abandoning Hinduism.

My point is that the Indian government does not accede to the Muslim Personal Law out of complete disregard for how it treats women, but out of worries about what the reaction to ending it would be. Calls to get rid of it have become negatively associated with rightwing groups because they are the same people who destroyed the Babri Masjid mosque and now attempt to build a temple on its ruins -- i.e., folks with a questionable reputation even in progressive anti-sharia Muslim circles.

Faced with overseeing a country of not just diversity but longstanding animosity between various groups, the Indian government has resorted to something a bit like federalism. The American Founders united a country that was part free and part slave, of thirteen colonies with different preferences, by making several accommodations. The importation of slaves could not be banned until 1808; they would be counted as three-fifths of a person for taxation and representation; if they fled into another state, they had to be delivered back into slavery. The federal government's lawmaking power was restricted, while that of the states was comparatively unlimited, not even bound by the Bill of Rights until post Civil War 14th Amendment incorporation. Louisiana continues to be governed by a civil code rather than common law, stemming from its French heritage. Native Americans have their own constitutions and tribal codes because of their sovereignty within the U.S.

Such localization exists in India partly through the panchayat system of informal village leaders who help to maintain law and order, but who also often are far more "backwards" than the state or national government would be. Such behavior is not exclusive to Muslims; when a Hindu girl was raped and impregnated by a Hindu boy, her parents demanded that the rapist be punished, but the panchayat told him to marry the victim (once she became of age to be married, which she apparently was not yet).

India has The Parsi Marriage and Divorce Act, the Indian Christian marriage act, the Hindu marriage act, the Hindu Maintenance and Adoption Act and special acts for intercommunal marriages. Beyond that, 'customary law' applies to many communities. For example, Keralan Muslims are not subject to the Shariat application act, they are instead governed by the "marumakkathayam" system. In Jammu and Kashmir , 'customary law', not sharia applies. In Goa, all citizens are governed by Portuguese family law. Tribals, Gujurati Bhoras, and many other all have thier own personal law systems.

The intercultural and cross-national demand that all people have the same rights is not directed only at the developing world; for those who believe that one should be able to marry regardless of a spouse's gender, the idea of that this should not be enforced by the federal government seems a surrender on human rights. American history indicates an increasing uniformity of law, but this is not an uncontroversial development.

Ideally there should be one law for everyone within a nation regardless of their religion, so that the faith of one's fathers does not become an unjust trap. However, I do not think that a single, unified legal system will be achieved easily in India. In particular, Muslims must articulate that their democratic preference is be freed of the rule of mullahs; liberating them through a Hindu majority's law-making is likely to lead to massive unrest due to a perception that the minority again is being tyrannized over.

July 10, 2005

Cathy Gellis: The ABA on maximum courseloads

The ABA has recently promulgated a new requirement that law students may not "be enrolled at any time in coursework that, if successfully completed, would exceed 20 percent of the total coursework required by that school for graduation (or proportionate number for schools on other academic schedules, such as a quarter system)." (See August 2004 revisions to Standard 204(e) available here.) At my law school that means that even though the university at large lets students take up to 18 units per semester with their tuition, law students will now be limited to 17.

Perhaps advocates for the rule change might argue a 17 unit maximum is not a substantive change from a pre-existing school rule permitting 18. But not so.

- Given that there are only two years when students can choose their own schedules,
- Given that courses are not offered every semester,
- Given that not all faculty teach every semester,
- Given that it's sometimes hard to make the unit math work out (if most classes are 3 or 4 units it's hard to hit 17 precisely),
- Given that students don't necessarily know before the second year begins whether they will be accepted to externships, clinics, or study abroad programs,
- Given that students don't always know before the second year begins what kinds of externships, clinics, study abroad programs or classes they would like to do,
- Given that there is so much to learn in the universe of law, and
- Given that even the most directed students may change their minds along the way,

the lower unit count can have a significant negative effect on the breadth of curriculum students can experience by considerably limiting their flexibility.

I'm not necessarily objecting to unit maximums in general. The school, naturally, will have some motivations to limit the student's schedule. The quality of the student's overall education may diminish if the student becomes spread too thin. Also, the school wants to make sure class spots are available to all who need them – if one student takes up too many seats, there won't be enough left for the rest of the class. But each school, understanding its own offerings and resources and relationship with its student body, is in the best position to set that unit maximum. And to make exceptions to its policies when appropriate. And students, if they are unhappy with the school's policies, are free to take their business elsewhere. But when the rules come from the ABA, students are instead forced to concede discretion over their own intellectual enrichment to this distant institution that they often have little, if any, direct contact with and who has absolutely no accountability to them.

Furthermore, the rationale behind the ABA's rule pales given the practical impact it has on students' education:

"To assure that students spread their studies out over the course of the program, Standard 304(e) would not allow a school to permit a student to be enrolled at any one time in coursework that would exceed more than 20 percent of the school’s requirements for graduation."

Even presuming that every semester the school offers identical opportunities – which certainly isn't true at my school and I doubt its true at most others – it is not at all apparent what is to be gained by making sure that students "spread their studies out." What is the harm in not spreading them out? There may be very good reasons why a student would want to overload one semester in order to have a lighter one another. (For me, it was because I'd only get 12 units if I did a study abroad program and I needed to make sure I'd be able to pick up the extra one at some point, and ideally one that would ensure I could complete my concentration if I wanted.) Or to even overload both semesters just because there's so much to learn, and that's what many of us came to law school to do.

Additionally, it's also not apparent why the ABA needs to be able to regulate when students take their classes. I can see legitimacy in ABA standardization of law school curricula when it comes to ensuring that law students graduate properly equipped for their new professions. But it's hard to see how micromanaging students' schedules has any significant benefit on the practice. And these regulations constrain even those law students who have no intention of practicing after graduation, which makes the ABA's imposition over their educational autonomy even more unjustified.

Given that it's not the ABA that we write our tuition checks to, it doesn't seem like the ABA has any business in regulating our personal intellectual development so specifically. Particularly because we had no voice in making this rule. Now, students in general were surely able to comment, as were the law schools (I've heard that mine protested the change), but the students who might have known about the proposed change in time to comment were not the students who were going to be affected by it. In fact, I'm not even a student who will be too affected by it either because I was lucky (and proactive) enough to be able to do my 18 unit semester before the change kicked in. But any student coming up behind me who has any similar needs will not have the flexibility required to get the full benefit of their education. If I'd had to face the 17 unit ceiling last year, I would not have been able to take one of the 5 classes I got to learn so much from. I wonder which piece of knowledge the ABA would prefer I not have?

Surely this can't be the result the ABA wants. Surely it can't think that there's some benefit to lawyering if students are limited in their learning. And surely it has no business imposing this arbitrary and pointless rule on thousands and thousands of students, effectively restricting each one's intellectual development.

July 09, 2005

A right to be drunk on private property?

[Jed Sorokin-Altmann] Not to add another post too quickly, but this article from yesterday's Boston Globe was quite interesting: "Man sues for right to be drunk on private property." Apparently, Massachusetts has a law called the Protective Custody Law, that was enacted in 1971. This law gives police the authority to lock up intoxicated individuals for up to twelve hours if they appear to pose a threat to the safety of themselves or others. The law does not specify whether or not it is limited to public property, on the other hand, it makes no mention of private property and it replaced a public intoxication law from Colonial times.

One can argue either way on textual interpretations of the statute itself, bur the added wrinkle is that Eric Laverriere, a 25-year-old who was taken into protective custody from a party in a private home, is claiming that the statute violates his constitutional rights. Laverriere argues, "One thing people should be able to do is drink in their own house...That's the beauty of the land of the free."

On the other hand, Boston attorney Leonard Kestan argues that if police, in the course of their normal duties, discover an intoxicated person who is a danger to themselves or others, police are obligated to take them into custody. Further, if police don't take the intoxicated individual into custody and the person gets a DUI-related accident, dies of alcohol poisoning, or something else along those lines occurs, the police may be found liable.

Forfeiture of the right to confrontation?

[Jed Sorokin-Altmann] I've been herding around 15 middle school-aged campers for the past two weeks (getting more exercise in one day that I usually get in a week!), and I've been pretty much coming home, eating dinner, and immediately falling asleep exhausted from running around yelling at them.... :p Hence, I haven't been blogging as frequently as I would under ordinary circumstances. Nevertheless, I came across an interesting decision from the Supreme Judicial Court (SJC) of Massachusetts: Commonwealth v. Edwards, et al., decided on July 1st.

The case deals with whether or not, and if so, in what circumstances, grand jury testimony of an unavailable witness can be used against defendants who prosecutors claim caused the witness to be unavailable. This does not only include cases of threatening a witness or killing a witness or whatnot, but also colluding with witnesses to try to keep them off the stand. The facts in this case, according to Justice Cowin, were as follows:

Three defendants are alleged to have colluded with the Commonwealth's key witness, Jeremy Crockett, to ensure Crockett's unavailability for trial. In particular, the Commonwealth points to a series of telephone calls made by the defendant Jermaine Edwards to Crockett while Edwards was incarcerated at the Suffolk County house of correction at South Bay, and just prior to two scheduled trial dates, in which the two can be heard orchestrating Crockett's leaving the jurisdiction. Crockett ultimately did appear in court, but refused to testify. We follow Federal and State courts that have considered the issue and adopt the "forfeiture by wrongdoing" doctrine whereby a defendant is deemed to have lost the right to object (on both confrontation and hearsay grounds) to the admission of the out-of-court statements of a witness whose unavailability the defendant has played a meaningful role in procuring.

The SJC remanded the case to Superior Court to determine whether or not the defendant did forfeit his right to object on confrontation and hearsay grounds.

I can't say I'm too thrilled with the concept of allowing the grand jury testimony to come in. It could severely prejudice the case against defendants. Nevertheless, I'm not thrilled with the idea of allowing a defendant to profit from unlawful collusion, either. If forced to make a ruling, however, I'd be inclined to exclude the grand jury testimony. I do see Justice Cowin's point, though.

He Needed Killin'

While Senators who joined the advice-and-consent House since Breyer's advent eleven years are prepping on the whole confirmation business, security is being heightened to prevent leaks about marijuana smoke and sexual harassment accusations. In this season of SCOTUS retirements, people commenting on the political and legal scene are trying to come up with measures of what makes a good or bad justice.

A favorite term among liberals is "mainstream," a word that was used to describe what President Bush's appeals court nominees were not in. Presumably the "mainstream" refers to what the democratic majority of the American people would prefer, and thus in a sense the term "activist," if one uses it to mean "judge who overturns the preferences of the American people as expressed in Congressional legislation," is another way to say "not in the mainstream."

While I initially had the same reaction as Will Baude to Gewirtz 'n' Golder's excluding invalidated state legislation from their survey, it makes sense to look only at Congressional legislation if you only want to see how the Supreme Court deals with another nationwide branch of government. (Also, to say in overturning the Violence Against Women Act the Supreme Court "is simply deferring to a different democratic branch of government" seems questionable considering states' preferences regarding VAWA, according to the TNR piece Will linked here.)

Certainly the impression I got from the G&G oped was that they were trying to discourage the use of the term "activist": "We can decide whether a particular degree of activism is appropriate only by assessing the merits of a judge's particular decisions and the judge's underlying constitutional views, which may inspire more or fewer invalidations." If you accuse a judge of being an activist, someone else will say, "But he needed killin'." ("He" meaning an unconstitutional law; "killin'" meaning overturnin'.) The only people who should use the term "activist" as a way of deeming a judge to be a bad one are those who want Marbury v. Madison dead.

Ex Poster Helvedius tries to resurrect the usefulness of the term activist by pointing out how it is preferable to the word "moderate." "Moderate" is a description of the political outcomes of one's decision-making process, and while it is of course useful to politicians and interest groups, it is an absurd term for people in the legal profession. Moreover, to use political terms actually does a disservice to the justices.

It was hardly "conservative" of Scalia to give the accused a leg up by requiring that witnesses against them must give their testimony in open court. This will result in many prosecutions' falling apart because witnesses fear facing the defendant, as with cases involving the Mafia, domestic violence, child abuse and molestation. I doubt that Scalia feels much fondness for criminals, particularly if there's any opportunity to have them executed. But because the text of the 6th Amendment declares that "the accused shall enjoy the right ... to be confronted with the witnesses against him," he penned an opinion, joined by seven other justices (most of whom are less inclined to stringing folks up), that testimony must be given only when the accused would be confronted with the people giving it.

Crawford v. Washington overturned Ohio v. Roberts (1980), and Rehnquist, in a concurrence joined by O'Connor, decried Scalia's opinion for the upset:

I believe that the Court's adoption of a new interpretation of the Confrontation Clause is not backed by sufficiently persuasive reasoning to overrule long-established precedent. Its decision casts a mantle of uncertainty over future criminal trials in both federal and state courts, and is by no means necessary to decide the present case.

However, "activist" is only marginally better than the political terms. Helvedius quotes from an interview with Robert Bork to make the case that O'Connor and Kennedy are "activists," with particular reference to this sentence: "The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution ... I would call [the former] activist."

Couldn't Bork just say what he means and declare that in O'Connor's and Kennedy's departures from the "actual Constitution," they were failing to be originalist or textualist or whatever philosophy of jurisprudence he thinks they should have applied? The word "activist" is bullshit because, as umpteen people have noted at this point, it frequently just becomes another word for "not what I would have done."

Activist, as reference to the dictionary (dear God, I'm becoming a textualist) would reveal, has no obvious connection to judicial work. What conservatives want to imply with the term is that judges who make a decision with which they disagree are engaged in activism, i.e. "taking direct and militant action to achieve a political or social goal," rather than disinterested judging. People at Bork's level therefore would consider that a decision different from the one that they would have made, and that results in a political outcome that they darkly suspect the alleged activist to favor, to be "activist."

But this is a lousy way to describe what the justices are doing. Take the Raich decision. Stevens, writing in the majority to let cancerous potsmokers be dragged off to federal prison in order to preserve the federal government's Wickard commerce clause powers, recommends democratic action to change the political outcome of his judicial decision. O'Connor dissents against this use of the commerce clause even though she herself would not have voted to permit medical marijuana; her work as a judge goes against her preferences as a political being.

Even if Bork's meaning for "activist" generally worked, the term has been hopelessly wrecked by his less intelligent political allies, who declared both the state and federal judiciary to be "activist" for failing to keep Teresa Schiavo on life support. That the law gives power of attorney to the spouse was no barrier to such pro-life activists' clamor about how the judges had screwed up.

A quick note regarding Matthew Yglesias's remark, "When an issue is litigated for the first time, the best way to preserve [the rule of law] is to do the best one can to stick to the original understanding of what the law said." Probably with raised eyebrows, Will restates this as "In other words, Yglesias endorses a regime of strong precedent followed by originalism. Are we all originalists now?"

Certainly the praise Matt implicitly gives to Lawrence v. Texas seems to conflict with what most people understand originalism to dictate; the original understanding of the Due Process Clause of the 14th Amendment, in all probability, did not include the liberty of private sexual conduct. Although, because such matters were for the states, there never was anything paralleling a Congressional vote to maintain school segregation in DC, to give us some idea of what the people who brought us the 14th Amendment meant by it with regard to sexual conduct.

However, I think that some explanation of this apparent contradiction might be found in looking at Scalia's deliberate misunderstanding in his Lawrence dissent, when he scorned his colleagues for saying, "Liberty finds no refuge in a jurisprudence of doubt."

That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

As Scalia ignored in the interests of scoring a rhetorical point, "stability and certainty" with regard to Bowers would be detrimental to liberty, unless the kind of liberty our Constitution is intended to protect is the liberty of the government to enforce laws. I don't think the Founders really worried as much about the government's freedom as they did about the people's. The 6th Amendment is all over the rights of the accused, but quite silent about the rights of the prosecutor.

In writing, "What we want from judges is the rule of law -- the combination of stability and predictability that allows people to be reasonably certain about what is and is not illegal," Matt may be trying to say that we need stability in the rights the Court already has declared to be Constitutionally required. So that if we have been conducting our sexual and reproductive health affairs on the assumption that Roe will hold, then the Court overturns it and South Dakota's automatic abortion prohibition* kicks in, this could have a tremendously negative impact due to actions people already have taken.

Or, to choose a less controversial example, suppose the Court declares that the Free Exercise clause no longer protects Amish teenagers from the truant officer. Amish people who live in Wisconsin rather than a state less inclined to enforce school attendance laws against them, and who do so on Yoder's assurance that they were free to take the kids out of school at 13, now have to re-arrange their lives drastically because of the sudden flipflop in policy.

I think one can argue coherently that stare decisis is more necessary in the preservation of liberties than in the preservation of restrictions on liberty.

* According to the Life Legal Defense Fund, South Dakota has a unique "trigger" law saying abortion will be banned there, except to save the pregnant woman's life, effective "on the date that the states are recognized by the U.S. Supreme Court to have the authority to prohibit abortion at all stages of pregnancy."

July 08, 2005

Today / 07.09.05

Today in History (1955) - In London, Bertrand Russell issued the Russell-Einstein Manifesto, which highlighted the dangers posed by nuclear weapons and called for world leaders to seek peaceful resolutions to international conflict a decade after the atomic bombings of Hiroshima and Nagasaki. It was signed by 11 preeminent intellectuals and scientists, most notably Albert Einstein. Their efforts were rewarded forty years later with the 1995 Nobel Peace Prize.

To Read or Not to Read

But really, a thought occurred to me. As my bio may suggest, I have a little fondness for Harry Potter, and I was thinking about those of you who may be (1) fans of the book and (2) taking the bar exam, and I felt really bad.

That's when the thought occurred.

The last book came out two years ago. What if Book 7 comes out two years from now? That would put its release in the same time that I would be taking the bar exam.

On the one hand, I know a guy who put off the LSAT for a year because it fell on the same day as the Red River Shootout. But I don't think I could put off the bar exam for Book 7, even if it is a huge deal. My only hope is that J.K. Rowling will take an extra year with this one.

So, what I want to know is this: for those of you who had a major life event* take place while you were studying for the bar, how did you handle it? I'm not asking about the bar exam in general, but more along the lines of which you chose. Did you keep right on studying? Or did you take a break for the major life event? If you took a break, how long was the break? And did it affect your studying any?

And if you are a Harry Potter fan and studying for the bar... are you going to take time out to read the book? If so, will you read it in one go, or reward yourself with a chapter a night, or what?

* Yes, actually, I do consider the release of Book 7 a major life event.

Boy Scouts Lose Government Money

In 2000 the Supreme Court decided that it was acceptable for the Boy Scouts to discriminate against gay troop leaders in the case of BOY SCOUTS OF AMERICA et al. v. DALE. Here's a bit of commentary from CNN on that opinion:

The Boy Scouts, which also exclude atheists and agnostics as leaders, said it has the right to decide who can join its ranks.

Forcing it to accept gays would violate its constitutional right of freedom of association and free speech under the First Amendment, it said.

The Boy Scouts insisted that it is up to them, not to any court, to decide who will be an adult Scout leader and who will not and who is an appropriate role model for younger Scouts and who is not.

The Boy Scouts have been sued many times before in state courts, but the organization has consistently won judgments that say it does not fall under state public accommodations laws.

Since that time, the Boy Scouts have been very pleased that they can discriminate as a private organization, but now they are getting angry because they can't receive federal money.

the Pentagon can no longer spend millions in government money to ready a Virginia military base for a national Boy Scout event typically held every four years, the American Civil Liberties Union announced Thursday.

This case:

stems from a 1999 lawsuit by the ACLU of Illinois that claimed the Defense Department sponsorship violates the First Amendment because the Scouts require members to swear an oath of duty to God.

A Scouts spokesman said he expects the Pentagon's lawyers to appeal.

"We are confident that an appeal to the 7th Circuit will return everything to the status quo," Bob Bork said.

ACLU of Illinois spokesman Ed Yohnka said no other youth organization receives millions of dollars in government support, and that the injunction is the latest step toward ending the Scouts' unfair advantage.

Isn't that strange? The Boy Scouts want to be a private organization when they want to discriminate against particular groups, but they want to fall under the public umbrella when they want your money.

I respect all points of view when it comes to issues like this, except for views from one group that are entirely hypocritical. Either you are a private organization that may discriminate, but may not receive federal funds. Or you are a public organization that can't discriminate, but can receive federal funds. Trying to do both makes the organization look dishonest and ridiculous.

Make up your mind Boy Scouts, you can't have your cake and eat it too.

Jason Samuel: Precise Imprecision

My post entitled "O'Connor-ed" did not receive any comments, unfortunately. What I attempted to point out there was the imprecision of much of the language used by those discussing Justice O'Connor's retirement and whom the president should nominate. Since then there has been commentary making the same argument. Here are some worth mentioning:

In retrospect, Souter and Thomas have turned out very different. Souter has developed into a moderate conservative in the tradition of John Marshall Harlan, the great dissenter to many of the activist decisions of the Warren court, but a firm believer in the right to privacy and due process of law.

Lots of editorials and opinion pieces are being penned about the future of the Supreme Court these days, and it occurs to me that all of this writing is terribly inefficient. We could condense most of the different editorials and opinion pieces into a single essay, with one caveat: you just need to insert the proper words depending on whether the authors are liberal or conservative.

Kerr tried an experiment where he "bracketed sections containing the word or phrase to insert for liberal authors followed after the slash by the word or phrase to insert for conservative authors."

"Activism and Federalism" - BalkinizationJack Balkin comments on a NYT's op/ed piece, which was about judicial activism. Balkin points out something worth noting, which is the imprecision of the phrase "judicial activist." This is because it can be defined in a way advantageous to diverse judicial philosophies/persuasions.

July 06, 2005

Detaining a Veteran

Even U.S. citizenship and service in the Navy and Naval Reserves doesn't grant American due process to people taken into custody in Iraq.

Mr. Kar's sister, Anna, described her brother in a telephone interview from Nairobi as "the last person who could ever be a threat." She said her brother "really believed in Bush's foreign policy," adding, "He believed sincerely that exporting American democracy would make the world a better place."

Ms. Kar, who works for the International Committee of the Red Cross in Africa, said she had discouraged her brother from going to Iraq and was pleasantly surprised when she received a call on May 24 from a Red Cross colleague in Iraq, who said she had just seen Mr. Kar.

"I said: 'Oh, great! What a coincidence that you met him over there,' " Ms. Kar said. "Then she said, 'No, I just visited him - in detention.'"

I guess this is one way to increase the number of Democratic voters, at least once they're released. Obviously not going to work for the non-citizens who get deported.

This Does Not Constitute a De Novo Endorsement

Normally I publish all law (school) related blogging here, but as this post is political advocacy on a morally controversial issue, I put it at my personal blog. If you're interested in my view of post-O'Connor reproductive freedom, please take a look and feel free to comment.

July 05, 2005

Anti-Scientology Bigotry

Like everyone else these days, I'm ragging on Tom Cruise's pontifications regarding the proper way to deal with psychological ailments. One blogger wonders,

How can/should we talk about scientology? If it's ok to dismiss ANY belief system as a wacky cult, it seems like it should be those guys. But is it?
As many have pointed out, the virgin birth and the wise men and all is a lot to swallow, too, but finding out that a friend takes the bible somewhat literally does not reduce my opinion of the friend's judgement. I think that finding out they were a scientologist likely would. Is this intolerance or just common sense?

I would consider a somewhat closer case, in light of Cruise's wading into medical matters, to be having a friend who is a Christian Scientist. If I delivered a baby and then suffered post-partum depression, a Catholic friend's belief in the virgin birth wouldn't require her to feel negatively toward my using an epidural during labor nor Paxil against the depression. But a Christian Scientist would consider medication to fight physical pain the wrong way to deal with it, and a Scientologist would feel the same way about drugs for psychological pain. And trying to avoid pregnancy or STD transmission with someone who follows the Pope's teachings on birth control could be quite exasperating.

In short, we don't really mind religious beliefs so long as they don't interfere with our practical everyday realities. Or at least I don't; Tom Cruise and Jerry Falwell are welcome to believe whatever they like, but once they start condemning others publicly for treating their own maladies incorrectly, or for causing the 9/11 attacks to happen, they open themselves to counter-criticism and condemnation without any special exception merely because their speech is religiously based. Although that raises another question: Is Scientology legally classified as a religion? From what I can tell, it doesn't involve a deity of any kind, not even a second-class pantheon. Is any all-encompassing framework in which people have a strong, not necessarily rational faith to be counted as a religion? If so, Marxism would fit into the category; "come the Revolution" sounds even less plausible to me than "come the Resurrection."

July 03, 2005

Today / 07.03.05

Today in History (1989) - The Supreme Court rules in Webster v. Reproductive Health Services that Missouri's declaration that life begins at conception and its restrictions on the use of public facilities and public employees in abortion do not conflict with the holding in Roe v. Wade. See O'Connor's concurrence here. Also of interest is her Akron dissent (1982), which challenged Roe's trimester system.

Next Symposium: Bar Review, Bar Exam

NOW HOLDING THE PRESS FOR PEOPLE TOO EXHAUSTED TO SUBMIT THIS WEEK! SOBER UP AND SEND YOUR CONTRIBUTIONS TO RUN AUGUST 8-12.

With three of the original De Novo bloggers graduated and now studyingfor and taking the bar exam in various states, we'll be holding our next symposium on a topic much on their minds. It is planned for the first second week of August, and as ever, we are soliciting contributions from a variety of perspectives: the class of 2005, professors, practitioners, clerks, judges, teachers of bar review courses, graders and writers of bar exam questions, even people from other professions who would like to provide a comparative look at the kind of licensing exams that they undergo.

Some bloggers, such as practitioner Scheherazade Fowler and professor Daniel Solove, have argued that the bar exam should be abolished, so a response to their criticisms would be especially useful, as would be suggestions on how to mend it, not end it.

Please send your complaints about BarBri pricing, horror stories on mistreatment by testing officials, odes to Chemerinsky and more to submit -at- blogdenovo -d0t- org. Thanks, and good luck to all those currently seeking to overcome this hurdle to becoming a real lawyer.

1) Thou shalt not underestimate the randomness of admissions committees.

This means that you should apply everywhere you might like to attend, but not to assume that just because a #10 school accepts you that a #20 school must. I got waitlisted at half the top 10 schools and eventually accepted to Columbia, but I also got flatout rejected by schools like Fordham and GW. Your sister's record probably isn't as weird as mine, but I think it's still worth the money to apply even to places that aren't certain to accept her.

2) Thou shalt put real effort into the essay.

With lots of very good candidates, the essay actually can make a difference, I think. The admissions committees need *something* to distinguish one person with a 3.8 GPA and 170 LSAT from a 3.7 and 175. I attribute some of my success and near-success in law school admissions to writing an essay that probably appealed to the admissions folks. (Although quite possible some of them hated it.)

3) Thou shalt consider one's interests and the schools' strengths.

I've had some people who were accepted to Columbia email to ask me if they should attend. I always tell them that if they're interested in Japan, they simply have to come here because it is one area in which we clearly excel ahead everyone else. If they're dead-set on a career in criminal law, Columbia may not be the best place for them. I didn't have much like that -- I mostly just wanted an all-around strong academic program -- but if you have certain strong preferences, you should look for schools that can meet them. My 'safety' school was the University of Houston, because even though they're not well-ranked overall, they have a good health law program and that was of interest to me.

In particular, if you aren't interested in being one of the thousands of overpaid giant firm attorneys who flood out of the top law schools every year, you should look hard at the public interest program and clinics. (I thought I didn't want to be one of those attorneys, but I suspect I've been sucked into the herd mentality enough that now I'm OK with the prospect.) If you want to go academic, Yale and the University of Chicago are reputedly especially good for that.

4) Thou shalt assess the importance of debt.

Part of the reason that people who had planned to do something else end up going into big law firms is that they have to pay off their debt. Debt comes in different sizes depending on where you go to school, because lower-ranked schools will give you big merit packages without much trouble whereas the top schools only will if they want you very badly. Almost everyone I know at Columbia has large debt loads that have at least a little influence on what they plan to do. People who went to their state schools or to schools that gave them large awards (Wake Forest would have covered 3/4 of my tuition, for example) have less debt and that sometimes means they can pursue career goals with less of a concern about paying back money.

5) Thou shalt visit the schools that accept thee.

In particular if you are the kind of person who is sensitive to your environment, it's very important that you check out where you might spend the next three years. Because grad school isn't the kind of all-encompassing cocoon that undergrad generally is, the neighborhood in which she'll live is much more important now than it was when she was in the Harvard Yard. Some people pick NYU over Columbia because they want to live in Greenwich Village instead of boring Morningside Heights; others pick Columbia over NYU because they want to live somewhere a little quieter and more affordable.

6) Thou shalt not overestimate the worth of gossip regarding the competitiveness of students at various schools.

I heard that Georgetown was murderously competitive, but a friend there has no complaints. One Columbia-admitted student emailed me saying,

I'm concerned because I've been told that the students are not very friendly, that they lead their own lives and don't hang out together, that they're generally pretty competitive with each other e.g. won't share notes or help each other study. Have you found this to be the case at all in your time at Columbia? Do you think this is the norm, and even if it is, how easy is it to avoid? Do you think it's any worse than other top schools?

I replied,

I heard similar things about the top law schools generally (with the exception of UVA, where both students and profs are preternaturally laid back), but I haven't found it to be true at Columbia. The guy sitting next to me in Legal Methods -- our very first class -- emailed me his notes from the first week when he noticed that I didn't have a laptop yet, and people continue to do that when I miss class. I've found people to be very helpful, and lots of students do study groups and hang out together. On the other hand, sometimes you'll really want to get away from the law school and many people already have friends in NYC, so it is easier to have an alternative group with whom to hang out here than it might be in New Haven or Ann Arbor.

With regard to competitiveness, I think it exists, but not in a boastful or backstabbing way. I do think there's some degree of anxiety; we're all aware that we're in a classful of smart, ambitious people, and thus many people worry about "falling behind." Last semester, one kid came in wearing a suit, and everyone was very worried that he'd gotten an interview for a summer job and the rest of us were Slacking Off. No one begrudged him the interview (which turned out to be for a volunteer position, not a job), but the thought of not being on track does make many people anxious.

I got into Columbia on a total fluke, five days before orientation, so I may not be the best person to ask about competitiveness. I figure I did much better than expected just by being here and don't push myself beyond that. [Cookie Monster song voice] "B/B+ is the middle of the curve, and it's good enough for me..." I didn't put together a resume until February, only did one serious interview and decided to work for my Torts prof, who is a rockstar nice guy, good teacher and First Amendment scholar, instead of stressing for a firm job or even a top public interest placement. A summer of thinking about whether Madison had a tripartite division of rights (natural, constitutive and constitution-given) is my idea of a good time. (Another reason why I may not be representative of law students; I'm pretty much just a con law geek and have limited interest in anything useful to earning a living. Not that this is totally lazy, as I've been told that a good recommendation from someone with whom you've worked closely is helpful at clerkship application time.)

If you're an inherently competitive person, you'll probably be inclined to push yourself to be the A student; if you're not, then you'll work as hard as you need to/ are interested in working, and spend the rest of the time goofing off: there's a lot of fun and interesting stuff to do here. I deliberately limited myself to three commitments, so I volunteer to tutor kids from the neighborhood, work on the Journal of Gender & Law, and write and perform in the law revue show, but I also do a lot of random one-offs like Election Protection and the Homeless Population Estimate.

So, in short, if you want to go someplace friendlier and less competitive than Columbia, go to UVA (I'm biased, it's my undergrad institution ;-). Otherwise, I think Columbia is no worse than any other top law school in those areas, and if you are a friendly and uncompetitive person, you will continue to be one here.

7) Thou shalt ask people who are actually at the schools for their opinions.

Ask multiple people, too, and don't be shy about asking the questions that are important to you. If you want to know the strength of a particular ethnic or a religious community (we have enough Mormons at Columbia that their kids have their own playgroup), try to get in touch with someone who belongs to it. If you want to be politically involved, find out how active the relevant groups are. Honestly, just plain Googling can help, because so many law students have blogs and websites these days that you can go straight to them instead of only getting the names the admissions people dole out.

8) Thou shalt get everything done on time; yea, even early.

One of the many ways in which I've generally been undeservedly lucky in life and not had to take the consequences of my stupidity is that I ended up getting into schools even after I had pressed dangerously close to their deadlines. Applying in a timely manner is one way to show that you're really interested in a school. It also allows time for supplementing your application if it only garners a "maybe" from a school you really want to attend.

8b) Thou shalt apply 8 to making the decision on where to attend, to some extent.

Waiting a long time to make a decision can make it more difficult to get housing; Columbia only guarantees housing-on-arrival to students who accept the offer before the end of May. However, if there's somewhere you'd really like to go and you're hanging on the waiting list, stay on even as you make plans to attend somewhere else. Law schools really do use their waiting lists.

9) Thou shalt consider taking time off between undergrad and law school.

If you're losing steam during your senior year -- feeling reluctant to attend class, or to do assignments -- you might want to work before you go to law school, in order to rebuild your enthusiasm for academic life. After two years in an office doing data collection and making spreadsheets, I felt a little more motivated about sitting in lectures, writing papers and studying for exams than I did at the end of 16 straight years of school.

10) Thou shalt not hyperventilate over any of the above.

It's just law school. If you don't like where you go your first year, you can transfer. If you don't like law school, period, you can take a time-out and come back later (see Dahlia Lithwick). People get to do cool, fun, fascinating, important stuff after coming out of a variety of schools. While I can't recommend attending a school outside the top 50 if you want to work at Skadden or clerk for a federal judge, within that range are schools with alumni that go everywhere and do everything. And outside that range are schools with alumni who don't go for those particular gold stars but do the work they love. We all study the same basic curriculum and take the same multistate portion of the bar exam. If you have a choice between UVA and Michigan and you hate cold weather, by all means come to Charlottesville and don't worry about the decision beyond that.

You can say that you're not creating an attorney-client relationship ten different ways, but the bottom line is that if it looks like an attorney-client relationship and smells like one, chances are the courts will deem it one.

Internet communication between potential clients and a law firm is privileged, even when an online questionnaire that potential clients fill out states that its use does not create an attorney-client relationship, the 9th U.S. Circuit Court of Appeals has ruled.

"Prospective clients’ communications with a view to obtaining legal services are plainly covered by the attorney-client privilege under California law, regardless of whether they have retained the lawyer, and regardless of whether they ever retain the lawyer," Judge Andrew J. Kleinfeld wrote.

Kleinfeld wrote that the privilege must apply to such initial consultations and queries because "without it, people could not safely bring their problems to lawyers unless the lawyers had already been retained." Wording denying an attorney-client relationship was included to protect Baum Hedlund from malpractice suits from some of the thousands of people who submitted questionnaires, Kleinfeld noted.

No one would question that privilege would apply if the plaintiffs made their initial contact in an office visit as opposed to an online form, he wrote. "Changes in law and technology that allow lawyers to solicit clients on the Internet and receive communications from thousands of potential clients cheaply and quickly do not change the applicable principles," he said.

So watch those disclaimers, or better yet, take Carolyn Elefant's advice:

So rather than disclaim what you say online, why not think hard about what you do say to begin with - and then stand by it. Because in the end, even the most thorough disclaimer won't insulate attorneys from accountability where it's deserved.

Jason Samuel: O'Connor-ed

As many of you may have read, Justice Sandra Day O'Connor announced her retirement early today. Story here. This was predicted by Bill Kristol, and posted here. As has been consistently the case, SCOTUS blog offers some well reasoned commentary on the matter. Lyle Denniston, in a recent post, had this to say:

President Bush has it in his power to make the Senate process in considering an O'Connor successor move more rapidly and with less controversy. If he were to choose a nominee of unquestioned reputation, strong judicial temperament, and moderate views, the chances are that the Senate fight might not be as deep, as angry or as prolonged.

While I do not take issue with any of SCOTUS blog's coverage, nor Lyle's post in particular, his use of "unquestioned reputation, strong judicial temperament, and moderate views" is indeed a symptom of how popular culture's coverage of the law misapprehends what's really taking place. Strictly speaking, this isn't anything wrong with Lyle's phraseology here. If President Bush nominates someone with these three characteristics, the confirmation process will be less a battle, and more a seamless transition. I believe a more accurate way of capturing the situation is to ask whether the President can appoint someone with those characteristics. Now, I do not mean to ask whether the President has the actual (read: physical) ability to do such a thing. Of course he does. I am also not asking whether the President has the constitution to do such a thing. This point many would debate. What I am trying to get at is that I do not believe the President can appoint someone with those characteristics, but not because he cannot actually, or because he doesn't possess the constitution to do so, but because those characteristics are meaningless in the context we use them.

What is an unquestioned reputation? Is anyone's reputation without question? Does it matter who questions someone's reputation? I have the same wonder of "strong judicial temperament." Also, what are moderate views? Is there any such thing as a moderate view. A view can be moderate? What defines moderate?--perhaps Who defines moderate? Is moderate indicative of 'middle,' asin compromised, or is it indicative of 'just,' as in justice. Then, moderate compared to what? Are 'views' ever moderate to those who disagree with them? With the foundation of initiatives like savethe court.org, or upordownvote.com, [I purposefully chose not to link to these sites] we're all in for a brutal confirmation process because each ideological camp believes our future is at stake. Though this might be true, we will all be disserved by what we're about to witness.

[Update below the fold]

UPDATE:

No sooner than I posted, I came across Lawrence Solum's post entitled "O'Connor's Importance on the Court." In it he elaborates on what he takes to mean "good judicial character," a phrase with which I took issue with its use. Solum wrote:

What I am suggesting is as simple as it is radical. When we select judges (especially Supreme Court justices), we should look first and foremost for good judicial character, and especially for the virtue of justice--the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges' own perceptions of what the law should be. We should select Justices who are willing to compromise in order to produce stable majorities on particular issues. We should select Justices who will respect the Supreme Court's decisions as precedent, even though they may have dissented from the decision. We should select Justices who care more about the rule of law and less about ruling through law.

I thought I would bring this to your attention since I criticized the use of this phrase as meaningless. Quite really, all of the phrases I criticized have some definite meaning (I am not a descriptivist entirely). What I am truly criticizing is our use of these phrases when all political stripes employ them. More simply, despite these phrases actually meaning something, because such diverse political camps use them to descibe who they think the ideal candidate for a vacancy would be, and then don't agree amongst each other on candidates, these phrases loose any effective meaning. I just didn't want to leave you all with the idea that I was some sort of hopeless descriptivist, unwilling to acknowledge that phrases like "good judicial character" actually meant something.

Also, I highly suggest you read Professor Solum's entire post, posted here. One of Solum's suggestsion for what ails the SC:

would be for the majority opinion writer to move towards the middle to "restate" the law in a way that would be agreeable to more than 5 Justices. (Or for O'Connor to write at least a concurrence in every case to explain her controlling position, a la the Powell opinion in Bakke, but that's far too much to ask of one Justice unless you provide her with an additional set of clerks.)

He posted a reply/criticism of his suggestions at the Legal Theory Annex. This post is also worth reading. Of the writers criticisms, I share this one in particualr:

But now the problem is, we've created compromise law that doesn't adhere to anyone's formalist reading, but rather was created to reach a particular political result -- i.e., legal stability. It then falls to the law professors to try to "explain" how we could come to such an odd detente. To me, that seems like an acceptable solution, but it doesn't seem like formalism. Isn't that exactly the kind of results-oriented law that you don't like?

More simply, Professor Solum advocates a formalist approach to judging:

[W]e need to expand our model of judicial attitudes and dispositons and recognize that judges vary not only in their political ideology, but also in their judicial philosophies. Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility.

Solum's advocacy for formalism would be undermined in the regime he recommends. The reply he posted stated the following:

But now the problem is, we've created compromise law that doesn't adhere to anyone's formalist reading, but rather was created to reach a particular political result -- i.e., legal stability. It then falls to the law professors to try to "explain" how we could come to such an odd detente. To me, that seems like an acceptable solution, but it doesn't seem like formalism. Isn't that exactly the kind of results-oriented law that you don't like? Am I missing something here?

Solum's blog, which is one of my favorites, will not let you down, so do be sure to visit.

Legos Explain The Hearsay Exception

I told myself that I wouldn't post the same story both here at De Novo and over at Objective Justice, but this one is too good:

Probably the funniest thing I've seen all year. Energy Spatula at Will Work For Favorable Dicta had an exceptionally talented producer in her evidence class. He created this video that explains the hearsay exceptions through the amazing acting of Lego characters.